Exhibit 1.1
DRS Technologies, Inc.
9% Senior Subordinated Convertible Debentures Due October 1, 2003
Standby Agreement
Old Greenwich, CT
December __, 2000
First Union Securities, Inc.
53 Forest Avenue
Old Greenwich, CT 06870
Ladies and Gentlemen:
DRS Technologies, Inc., a Delaware corporation (the "Company"), intends to
call for redemption on January 18, 2001 (the "Redemption Date") all of its 9%
Senior Subordinated Convertible Debentures due October 1, 2003 (the
"Debentures"), at a total redemption price of _______ per $1,000 principal
amount of Debentures (which amount includes accrued but unpaid interest to the
Redemption Date and the required redemption premium (the "Redemption Price").
The Debentures are convertible into shares of the Common Stock, $0.01 par value,
of the Company ("Common Stock"), at any time prior to the close of business at
the place where the Conversion Agent (as defined in the Indenture dated as of
September 22, 1995 between the Company and the Trust Company of New Jersey, as
trustee (the "Indenture")), is located, on the business day preceding the
Redemption Date. The close of business at the location where the Conversion
Agent is located is 5:30 p.m., Eastern Standard Time. Certain capitalized terms
used in this Agreement are defined in Section 17 hereof.
In order to ensure that the Company will have available sufficient funds to
redeem any Debentures not converted prior to or on the Redemption Date, the
Company wishes to make arrangements pursuant to which you (the "Purchaser")
will, following the Redemption Date, purchase shares of Common Stock that would
have been issuable upon the conversion of the Debentures that have not been
surrendered for conversion prior to the close of business at the place where the
Conversion Agent is located, on the business day preceding the Redemption Date.
Any reference herein to the Registration Statement, a Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of such Preliminary Prospectus or the
Prospectus, as the case may be; and any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date of
the Registration Statement, or the issue date of any Preliminary Prospectus or
the Prospectus, as the case may be, deemed to be incorporated therein by
reference. Certain terms used herein are defined in Section 17 hereof.
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1. Representations and Warranties. The Company represents and warrants to,
and agrees with, the Purchaser as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration statement
(file number 333- ) on Form S-3, including a related preliminary
prospectus, for the registration under the Act of the issuance by the
Company of the shares of Common Stock issuable upon conversion by the
Purchaser of Debentures and the sale by the Purchaser of any shares of
Common Stock that may be acquired by the Purchaser hereunder. The Company
may have filed one or more amendments thereto, including a related
preliminary prospectus, each of which has previously been furnished to you.
The Company will next file with the Commission one of the following: either
(1) prior to the Effective Date of such registration statement, a further
amendment to such registration statement, including the form of final
prospectus, (2) after the Effective Date of such registration statement, a
final prospectus in accordance with Rule 424(b) or (3) a final prospectus
in accordance with Rules 415 and 424(b). In the case of clause (2), the
Company has included in such registration statement, as amended at the
Effective Date, all information required by the Act and the rules
thereunder to be included in such registration statement and the
Prospectus; provided, however, that the Company makes no representations or
warranties as to the information contained in or omitted from the
Registration Statement or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished herein or in
writing to the Company by the Purchaser specifically for inclusion in the
Registration Statement or the Prospectus (or any supplement thereto). As
filed, such amendment and form of final prospectus, or such final
prospectus, shall contain all such required material information, and,
except to the extent the Representative shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional information and
other changes (beyond those contained in the latest Preliminary Prospectus)
as the Company has advised you, prior to the Execution Time, will be
included or made therein. If the Registration Statement contains the
undertaking specified by Regulation S-K Item 512(a), the Registration
Statement, at the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance with Rule
424(b) and, on the Redemption Date and on the Closing Date (as defined
herein), the Prospectus (and any supplements thereto) will, comply in all
material respects with the applicable requirements of the Act and the
Exchange Act and the respective rules thereunder; on the Effective Date and
at the Execution Time, the Registration Statement did not or will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 424(b), did not or will not, and
on the date of any filing pursuant to Rule 424(b), on the Redemption Date
and on the Closing Date, the Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they
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were made, not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or omitted
from the Registration Statement or the Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished
herein or in writing to the Company by the Purchaser specifically for
inclusion in the Registration Statement or the Prospectus (or any
supplement thereto).
(c) The Debentures are convertible into Common Stock at a conversion
price of $8.85 per share of Common Stock. At the Execution Time, there was
outstanding $10,215,006.30 aggregate principal amount of Debentures. The
redemption of all the outstanding Debentures has been duly authorized by
the Company. By the close of business on the business day following the
date of execution hereof, all of the Debentures will have been duly called
for redemption in accordance with the terms of the Indenture; and the right
to convert the Debentures into shares of Common Stock will, as a result of
such call, expire as of the close of business at the place where the
Conversion Agent is located, on the business day preceding the Redemption
Date. Copies of the forms of notice of redemption and the related letters
of transmittal (collectively, the "Notices of Redemption") with respect to
each series of Debentures have been heretofore delivered to you by the
Company. The Debentures have been duly and validly authorized and issued
and constitute valid and binding obligations of the Company entitled to the
benefits of the Indenture, enforceable in accordance with their terms
except as enforcement thereof may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium and other laws affecting
the enforcement of creditors' rights and by general equitable principles.
(d) The Company has neither taken nor will take, directly or
indirectly, any action designed to cause or result in, or that has
constituted or that might be reasonably expected to cause or result in,
stabilization or manipulation of the price of any security of the Company
to facilitate the conversion of the Debentures (provided that the Company
does not make any representation as to any actions that may be taken by the
Purchaser); and the Company has not distributed and will not distribute any
prospectus or other offering material in connection with the issue and sale
of the Securities (as hereinafter defined) other than the Registration
Statement, any Preliminary Prospectus filed with the Commission or the
Prospectus or any other material permitted by the Act.
(e) The Company has neither paid or given, nor will pay or give,
directly or indirectly, any commission or other remuneration for soliciting
the conversion of Debentures into Common Stock and cash.
(f) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect;
and no proceedings for such purpose are pending before or, to the knowledge
of the Company, threatened by the Commission.
(g) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition
(financial or otherwise), earnings or
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business affairs of the Company and its subsidiaries considered as one
enterprise, whether or not arising from transactions in the ordinary course
of business (a "Material Adverse Effect"), and (B) there have been no
transactions entered into by the Company or any of its subsidiaries, other
than those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one enterprise.
(h) This Agreement has been duly authorized, executed and delivered by
the Company.
(i) The authorized capital stock of the Company conforms in all
material respects as to legal matters to the description thereof contained
in the Prospectus.
(j) The call of the Debentures for redemption, the conversion or
redemption thereof, the issue and sale of the Securities (as hereinafter
defined), the execution, delivery and performance by the Company of this
Agreement and the consummation by the Company of the transactions
contemplated herein and compliance by the Company with its obligations
hereunder do not and will not, whether with or without the giving of notice
or passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or pursuant to any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which the Company is a party or by which it may be bound, or to which any
of the property or assets of the Company is subject (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will any such action
result in any violation of the provisions of the charter or by-laws of the
Company, or any applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court,
domestic or foreign, known to the Company having jurisdiction over the
Company or any of its assets, properties or operations which would result
in a Material Adverse Effect. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any subsidiary.
(k) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency by or on behalf of the Company is necessary or required
for the performance by the Company of its obligations hereunder, in
connection with the issue and sale of the Securities hereunder or the
consummation by the Company of the transactions contemplated by this
Agreement, except such as have been already obtained, and except for such
that would not reasonably be expected to have a Material Adverse Effect or
as may be required under the Act or the applicable rules and regulations of
the Commission thereunder or state securities laws.
(l) The Company is not and, after giving effect to the issue and sale
of the Securities hereunder and the application of the proceeds thereof as
described in the Prospectus, will
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not be, an "investment company" as defined in the Investment Company Act of
1940, as amended.
2. Purchase and Conversion of Debentures. Subject to the terms and
conditions and in reliance upon the representations and warranties herein set
forth:
(a) The Purchaser agrees to surrender for conversion into Common Stock
prior to 5:30 p.m., Eastern Standard Time, on the business day preceding
the Redemption Date, all Debentures purchased by the Purchaser pursuant to
Section 4 hereof or otherwise acquired by such Purchaser. The shares of
Common Stock issued to the Purchasers upon the conversion of Debentures
purchased by the Purchaser pursuant to Section 4 hereof are referred to as
the "Conversion Securities."
(b) If any Debentures have not been surrendered for conversion prior
to 5:30,, p.m. Eastern Standard Time, on the business day preceding the
Redemption Date, at the option of the Company, exercisable by giving notice
in writing to the Purchaser not later than 8:00 p.m., Eastern Standard
Time, on the business day preceding the Redemption Date, the Company may
sell to the Purchaser, and the Purchaser shall purchase from the Company,
at a purchase price of $___ per share of Common Stock that would have been
issuable upon conversion of Debentures not surrendered for conversion, such
number of shares of Common Stock as shall be specified in such notice (but,
in each case, not in excess of such number of shares of Common Stock as
would have been issuable upon the conversion of all Debentures not
surrendered for conversion). The shares of Common Stock to be purchased
pursuant to this Section 2(b) are referred to as the "Purchased Securities"
and, together with the Conversion Securities, the "Securities."
Delivery of and payment for the Purchased Securities shall be made at
10:00 A.M., Eastern Standard Time, on January 18, 2001, which date and time
may be postponed by agreement between the Purchaser and the Company (such
date and time of delivery and payment for the Purchased Securities being
herein called the "Closing Date"). Delivery of the Purchased Securities
shall be made to the Purchaser against payment by the Purchaser of the
purchase price thereof to the Company or, upon the order of the Company by
wire transfer payable in same-day funds, to an account specified by the
Company. Delivery of the Purchased Securities shall be made through the
facilities of The Depository Trust Company unless the Purchaser shall
otherwise instruct. The closing of the purchase and sale of the Purchased
Securities shall be made at the office of Cleary Gottlieb Steen & Hamilton.
3. Compensation. As compensation for the commitment of the Purchaser
hereunder, the Company will pay to the Purchaser an amount equal to the sum of
(i) $200,000 plus (ii) the amount, if any, by which the product of (x) 7% and
(y) the aggregate sales price of all Conversion Securities and Purchased
Securities sold by the Purchaser at or below $11.00 per share, exceeds $200,000.
For purposes of the foregoing, (i) Conversion Securities and Purchased
Securities sold at prices below $11.00 per share shall be deemed to have been
sold at $11.00 and the proceeds of such sales shall be determined based on such
assumption, and (ii) any Conversion Securities or Purchased Securities not sold
prior to the fifteenth day following the Redemption Date shall be deemed to have
been sold by the Purchaser for an amount equal to the higher of (i)
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the last reported sale price of the Common Stock on such day and (ii) $11.00.
Nothing contained herein shall limit the right of the Purchaser, in its
discretion, to determine the price or prices at which, or the time or times
when, any Securities shall be sold, whether or not prior to the Redemption Date
and whether or not for long or short account.
Such compensation shall be paid to the Purchaser as by wire transfer
payable in same-day funds to an account specified by the Purchaser, paid as
follows: (A) $200,000 on the date of this Agreement and (B) any remaining
compensation as soon as practicable but no later than (i) two Business Days
following notification by the Purchaser that all Conversion Shares and Purchased
Shares have been sold or (ii) the seventeenth day following the Redemption Date.
4. Additional Purchases. The Purchaser may purchase Debentures, in the open
market or otherwise, in such amounts and at such prices as the Purchaser may
deem advisable. All Debentures so purchased will be converted by the Purchaser
into Common Stock in accordance with Section 2(a) hereof. The Common Stock
acquired by the Purchaser upon conversion of any Debentures acquired pursuant to
this Section 4 may be sold at any time or from time to time by the Purchaser. It
is understood that, for the purpose of stabilizing the price of the Common Stock
or otherwise, the Purchaser may (but will not be obligated to) make purchases
and sales of Common Stock, in the open market or otherwise, for long or short
account, on such terms as the Purchaser may deem advisable and the Purchaser may
overallot in arranging sales.
5. Agreements. The Company agrees with the Purchaser that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the Registration
Statement or supplement to the Prospectus unless the Company has furnished
the Purchaser a copy for the Purchaser's review prior to filing and will
not file any such proposed amendment or supplement to which the Purchaser
reasonably objects in writing; provided, however, that the preceding clause
shall not apply to the filing of any document required to be filed by the
Company under the Exchange Act that upon filing is deemed to be
incorporated by reference in the Registration Statement, except that the
Company shall, to the extent practicable, furnish the Purchaser a copy of
any such document a reasonable time prior to filing. Subject to the
foregoing sentence, if filing of the Prospectus is required under Rule
424(b), the Company will cause the Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Purchaser of such timely filing.
The Company will promptly advise the Purchaser (1) when the Registration
Statement (and any amendment thereto), if not effective at the Execution
Time, shall have become effective, (2) when the Prospectus, and any
supplement thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b), (3) when, prior to termination of the offering of
the Securities, any amendment to the Registration Statement shall have been
filed or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration Statement or for any supplement
to the Prospectus or for any additional information, (5) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose
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and (6) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a Prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Prospectus to comply with the
Act or the Exchange Act or the respective rules thereunder, the Company
promptly will (1) notify the Purchaser of such event, (2) prepare and file
with the Commission, subject to the second sentence of paragraph (a) of
this Section 5, an amendment or supplement which will correct such
statement or omission or effect such compliance and (3) supply any
supplemented Prospectus to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Purchaser an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Purchaser and counsel for the
Purchaser, without charge, five signed copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by
the Purchaser or a dealer may be required by the Act, as many copies of
each Preliminary Prospectus and the Prospectus and any supplement thereto
as the Purchaser may reasonably request. The Company will pay the expenses
of printing or other production of all documents relating to the
transactions contemplated hereby. The Company will pay all transfer taxes
as may be imposed on the Purchaser in connection with their purchase of
Debentures pursuant hereto.
(e) The Company will use its best efforts to qualify the Securities
for sale under the laws of such jurisdictions as the Purchaser may
designate and will maintain such qualifications in effect so long as
required for the distribution of the Securities; provided that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to execute a general
consent to service of process in any state or to otherwise subject itself
to taxation (other than stock transfer taxes) in connection with any such
qualification.
(f) The Company will mail or cause to be mailed not later than the
Business Day following the date of execution hereof the Notices of
Redemption by first class mail to the registered holders of the Debentures
as of the close of business on the date of execution hereof, which mailing
will conform to the requirements of the Indenture. The Company will not
withdraw or revoke the Notices of Redemption or attempt to do so.
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(g) The Company will advise the Purchaser daily of the amount of
Debentures surrendered in the previous day for redemption or for
conversion.
(h) The Company will not take any action the effect of which would be
in require an adjustment in the conversion price of the Debentures.
(i) The Company will not, prior to the Redemption Date (and, if the
aggregate number of the Securities exceeds 500,000 shares, for an
additional period of 30 days following the Redemption Date), without the
prior written consent of the Purchaser, offer, sell or contract to sell, or
otherwise dispose of (or enter into any transaction which is designed to,
or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement
or otherwise) by the Company) directly or indirectly, by means of a public
offering requiring registration with the Securities and Exchange Commission
or announce the public offering of, any other shares of Common Stock (other
than the Securities) or any securities convertible into, or exchangeable
for, shares of Common Stock. Notwithstanding the foregoing, this
restriction shall not apply to any sale or disposition of securities
pursuant to the registration of such securities on Form S-4 or Form S-8
under the Act or any successor forms or any sale or disposition of
securities in connection with any merger or consolidation involving the
Company or a subsidiary of the Company or the acquisition by the Company or
a subsidiary of the Company of the capital equity or substantially all of
the assets of any other person or entity). The provisions of this paragraph
(i) shall not prevent the conversion or exchange pursuant to their terms of
any securities of the Company outstanding at the Execution Time into or for
other shares of Common Stock or any securities convertible into, or
exchangeable for, shares of Common Stock.
6. Conditions to the Obligations of the Purchasers. The obligations of the
Purchaser to convert Debentures and to purchase any Purchased Securities shall
be subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the Execution Time, each Effective Date
occurring after the Execution Time, the Redemption Date and, as to the purchase
of the Purchased Securities, the Closing Date, to the accuracy of the statements
of the Company made in any certificates pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Purchaser agrees in writing to a later time,
the Registration Statement shall have become effective not later than 9:30
A.M., New York City time, on the Business Day following the date of
execution hereof; if filing of the Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the Prospectus, and any such
supplement, shall have been filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
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(b) On the date of this Agreement and on the Closing Date, the Company
shall have furnished to the Purchaser the opinion of Nina Laserson Dunn,
Executive Vice President, General Counsel and Secretary of the Company,
dated the date of this Agreement and the Closing Date, respectively, to the
effect that:
(i) the Company has been duly organized and is validly existing
and in good standing under the laws of the State of Delaware; the
Company has corporate power and authority to conduct its business as
described in the Prospectus; the Company is duly qualified to do
business and is, if applicable, in good standing in each jurisdiction
in which it owns or leases a material amount of real property [also
include significant subsidiaries];
(ii) the outstanding shares of Common Stock have been duly and
validly authorized and issued and are fully paid and nonassessable;
the outstanding Debentures have been duly and validly authorized and
issued and constitute valid and binding obligations of the Company
entitled to the benefits of the Indenture, enforceable in accordance
with their terms except as enforcement thereof may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights and by general equitable principles; assuming the mailing of
the Notices of Redemption in accordance with Section 1(c) hereof and
any further assumptions agreed upon by the parties, all the Debentures
will have been duly called for redemption by the close of business on
the Business Day following the date of execution hereof and the right
to convert the Debentures into shares of Common Stock will expire at
5:30 p.m., Eastern Standard Time, on the business day preceding the
Redemption Date; the shares of Common Stock issuable upon conversion
of the Debentures have been duly and validly authorized and, when
issued and delivered upon conversion of any Debentures pursuant to
this Agreement, will be fully paid and nonassessable; the Purchased
Securities have been duly and validly authorized and, when issued and
delivered to and paid for by the Purchasers pursuant to this
Agreement, will be fully paid and nonassessable; the Converted
Securities (and, for the opinion to be delivered on the Closing Date
only, the Purchased Securities) are duly listed, and admitted and
authorized for trading, subject to official notice of issuance, on the
American Stock Exchange; the certificates for the Securities are in
valid and sufficient form; the holders of outstanding shares of
capital stock of the Company are not entitled to preemptive or other
rights to subscribe for the Securities or the shares of Common Stock
issuable upon conversion of the Debentures; and, except as set forth
in the Prospectus and documents included by reference therein, the
Registration Statement and documents included by reference therein and
any registration statements filed with the SEC on Form S-8, no
options, warrants or other rights to purchase, agreements or other
obligations to issue, or rights to convert any obligations into
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or exchange any securities for, shares of capital stock of or
ownership interests in the Company are outstanding;
(iii) the descriptions in the Registration Statement and the
Prospectus of statutes, legal and governmental proceedings, contracts
and other documents (including in each case the documents incorporated
by reference therein) fairly present the information required to be
shown; and such counsel does not know of any statutes or legal or
governmental proceedings required to be described in the Prospectus
that are not described as required, or of any contracts or documents
of a character required to be described in the Registration Statement
or Prospectus (or required to be filed under the Exchange Act if upon
such filing they would be incorporated, in whole or in part, by
reference therein) or to be filed as exhibits to the Registration
Statement that are not described and filed as required;
(iv) such counsel has no reason to believe that on the Effective
Date or at the Execution Time the Registration Statement contained or
contains any untrue statement of a material fact or omitted or omits
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Prospectus
as of its date and on the Closing Date includes any untrue statement
of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in each
case, other than the financial statements and other financial
information contained therein, as to which such counsel need express
no opinion);
(v) the statements in the Prospectus under the caption
"Description of Capital Stock," insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to
such legal matters, documents and proceedings and fairly summarize the
matters referred to therein;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) the call of the Debentures for redemption, the conversion
or redemption thereof, the issue and sale of the Securities, the
execution, delivery and performance by the Company of this Agreement
and the consummation by the Company of the transactions contemplated
herein and compliance by the Company with its obligations hereunder
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any
agreement or instrument known to such counsel to which the Company is
a party or by which it is bound or to which any of the property of the
Company or any Significant Subsidiary is subject, the Company's
Articles of Incorporation, as amended to date, or by-laws, or any
order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company
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any of its respective properties of the Laws of the State of New York,
the Delaware General Corporation Law or the Federal Laws of the United
States; and no consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required for the
consummation of the transactions contemplated by this Agreement,
except such as have been obtained under the Act and such as may be
required under state securities laws in connection with the purchase
and distribution of the Shares by the Purchaser; provided that no
opinion is called for with respect to any such consent, approval,
authorization or order required to be obtained under the Act and the
applicable rules and regulations of the Commission thereunder that
have been obtained or as may be required under state securities laws
or Blue Sky Laws of the various states; and
(viii) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Delaware or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Purchaser and (B) as to matters of fact, to
the extent they deem proper, on certificates of responsible officers of the
Company and public officials. References to the Prospectus in this
paragraph (b) include any supplements thereto at the Closing Date. The
opinion of such counsel shall be rendered to the Purchaser at the request
of the Company and shall so state therein.
(c) On the date of this Agreement and on the Closing Date, the Company
shall have furnished to the Purchaser the opinion of Arnold & Porter,
counsel for the Company, dated the date of this Agreement and the Closing
Date, respectively, to the effect that:
(i) the authorized capital stock of the Company is as set forth
in the Prospectus; and the Shares conform to the description of the
Common Stock contained in the Prospectus;
(ii) such counsel has been advised by the staff of the Commission
that the Registration Statement has become effective under the Act on
the date and at the time specified in such opinion; the Prospectus was
filed pursuant to the subparagraph of Rule 424(b) under the Act
specified in such opinion on the date specified therein in the manner
and within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement under the
Act has been issued and, to such counsel's knowledge, no proceeding
has been instituted or threatened;
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<PAGE>
(iii) the Registration Statement and the Prospectus, and any
further amendments or supplements thereto (other than the financial
statements and other financial data therein, as to which such counsel
need express no opinion), comply as to form in all material respects
with the requirements of the Act and the rules and regulations of the
Commission thereunder; and the documents from which information is
incorporated by reference in the Prospectus, when they became
effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the requirements of
the Act and of the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder (other than the financial
statements and other financial data therein, as to which such counsel
need express no opinion);
(iv) such counsel has no reason to believe that on the Effective
Date or at the Execution Time (or, for the opinion to be delivered on
the Closing Date, at the latest Effective Date) the Registration
Statement contained or contains any untrue statement of a material
fact or omitted or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus as of its date (or, for the opinion
to be delivered on the Closing Date, as of the Closing Date) includes
any untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading (in
each case, other than the financial statements and other financial
information contained therein, as to which such counsel need express
no opinion).
In rendering such opinion, such counsel may (A) state that their opinion is
limited to matters governed by the laws of the State of New York or the
Federal laws of the United States and (B) rely, as to matters of fact, to
the extent they deem proper, on the representations made by the Company
herein or on certificates of public officials. References to the Prospectus
in this paragraph (d) include any supplements thereto at the Closing Date.
The opinion of such counsel shall be rendered to the Purchaser at the
request of the Company and shall so state therein.
(d) On the date of this Agreement and on the Closing Date, the
Purchaser shall have received from Cleary, Gottlieb, Steen & Hamilton,
counsel for the Purchasers, such opinion or opinions, dated the date of
this Agreement and the Closing Date, respectively, and addressed to the
Purchaser, with respect to the issuance and sale of the Securities, the
Registration Statement, the Prospectus (together with any supplements
thereto) and other related matters as the Purchaser may reasonably require,
and the Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters. The
opinion or opinions of such counsel shall be rendered to the Purchasers at
the request of the Company and shall so state therein.
(e) On the date of this Agreement, on each Effective Date occurring
after the Execution Time and on the Closing Date, the Company shall have
furnished to the Purchaser a certificate of the Company, signed by the
Chairman of the Board, the Chief
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<PAGE>
Executive Officer, the Executive Vice President or the Senior Vice
President and the principal financial or accounting officer of the Company,
dated the date of delivery, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Prospectus, any supplements to the Prospectus and this Agreement and to the
effect that, to the best of their knowledge based upon reasonable
investigation:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the date of such certificate as if made on the date of such
certificate and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to the date of such certificate;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto),
there has been no material adverse change or development involving a
prospective material adverse change in the condition (financial or
otherwise), earnings, business or properties of the Company and its
subsidiaries, considered as one enterprise, whether or not arising
from transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
(f) At the Execution Time, on each Effective Date occurring after the
Execution Time on which financial information is included or incorporated
in the Registration Statement or the Prospectus and on the Closing Date,
KPMG LLP shall have furnished to the Purchaser a letter, dated respectively
as of the Execution Time, each such Effective Date and as of the Closing
Date, in form and substance satisfactory to the Purchaser, confirming that
they are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable published rules and regulations
thereunder and containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information contained in or
incorporated by reference in the Registration Statement and Prospectus.
(g) References to the Prospectus in this paragraph (g) include any
supplement thereto as of the date of this Agreement. Subsequent to the
Execution Time or, if earlier, the dates as of which information is given
in the Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto), there shall not have been
(i) any change or decrease in certain line items of the Company's financial
statements specified in the letter or letters referred to in paragraph (g)
of this Section 6 or (ii) any change, or any development involving a
prospective change, in or affecting the condition (financial or otherwise),
earnings, business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the ordinary
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<PAGE>
course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto) the effect of which, in
any case referred to in clause (i) or (ii) above, is, in the sole judgment
of the Purchaser, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment
thereof) and the Prospectus (exclusive of any supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(i) The Securities shall have been approved for listing on the
American Stock Exchange, subject to official notice of issuance, and
satisfactory evidence of such action shall have been provided to the
Purchaser.
(j) At the Execution Time, the Company shall have furnished to the
Purchaser a letter substantially in the form of Exhibit A hereto addressed
to the Purchaser.
(k) The Company shall have furnished to the Purchaser such further
information, certificates and documents as the Purchaser may reasonably
request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Purchaser and counsel for the Purchaser, this Agreement and
all obligations of the Purchaser hereunder may be canceled at, or at any time
prior to, the Closing Date by the Purchaser. Notice of such cancellation shall
be given to the Company in writing or by telephone or facsimile confirmed in
writing.
The documents required to be delivered by this Section 6 shall be delivered
at the office of Cleary, Gottlieb, Steen & Hamilton, counsel for the Purchaser,
at 1 Liberty Plaza, New York, New York 10006, on the due date for delivery
thereof.
7. Reimbursement of Purchasers' Expenses.
(a) The Company will reimburse the Purchaser for its expenses relating
to the transaction contemplated herein in an amount not to exceed $25,000.
(b) If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Purchaser set
forth in Section 6 hereof is not satisfied other than by reason of a breach
by the Purchaser, because of any termination pursuant to Section 10 hereof
or because of any refusal, inability or failure on the part of the Company
to perform any agreement herein or comply with any provision hereof other
than by reason of a default by the Purchaser, the Company will reimburse
the Purchaser on demand for all out-of-pocket expenses (including
reasonable fees and disbursements
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<PAGE>
of counsel) that shall have been incurred by the Purchaser in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless the Purchaser, the directors, officers,
employees and agents of the Purchaser and each person who controls the
Purchaser within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement for the registration of the Securities as originally filed or in
any amendment thereof, or in any Preliminary Prospectus or the Prospectus,
or in any amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will not
be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by the Purchaser specifically for inclusion therein; provided,
further, that with respect to any untrue statement or omission of material
fact made in any Preliminary Prospectus, the indemnity agreement contained
in this Section 8(a) shall not inure to the benefit of the Purchaser from
whom the person asserting any such loss, claim, damage or liability
purchased the securities concerned, to the extent that any such loss,
claim, damage or liability of the Purchaser occurs under the circumstance
where it shall have been determined by a court of competent jurisdiction by
final and nonappealable judgment that (w) the Company had previously
furnished copies of the Prospectus to the Purchasers, (x) delivery of the
Prospectus was required by the Act to be made to such person, (y) the
untrue statement or omission of a material fact contained in the
Preliminary Prospectus was corrected in the Prospectus and (z) there was
not sent or given to such person, at or prior to the written confirmation
of the sale of such securities to such person, a copy of the Prospectus.
This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) The Purchaser agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signs the Registration
Statement and each person who controls the Company within the meaning of
either the Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company to the Purchaser, but only to the extent that
any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or omission, or alleged untrue statement or
omission or alleged omission made in the documents referred to in the
foregoing indemnity in reliance upon and in conformity with written
information relating to the Purchaser furnished to the Company by the
Purchaser specifically for inclusion in the documents referred to in the
foregoing indemnity, and agrees to reimburse each such indemnified party,
as incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability which the Purchaser may otherwise
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<PAGE>
have. The Company acknowledges that (i) the statements set forth in the
first paragraph of page 2 regarding delivery of the Securities, (ii) the
legend in block capital letters on page 2 related to stabilization and
(iii) the sentences related to concessions and the fifth paragraph related
to stabilization under the heading "Standby Arrangements" in any
Preliminary Prospectus and the Prospectus constitute the only information
furnished in writing by the Purchaser for inclusion in any Preliminary
Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
the institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. It is understood, however, that the Company
shall, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of local counsel at any time for all
such Purchasers and controlling persons, which firm shall be designated in
writing by First Union Securities, Inc. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding and does not include a
statement as to or an admission of fault, culpability or a failure to act
by or on behalf of any indemnified party. An indemnifying party shall not
be liable under this Section 8 to any indemnified party regarding any
settlement or
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<PAGE>
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent is consented to by
such indemnifying party, which consent shall not be unreasonably withheld.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Purchasers severally
agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which the Company and the Purchaser may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and by the Purchaser on the other from the offering of the
Securities; provided, however, that in no case shall the Purchaser (except
as may be provided in any agreement among purchasers relating to the
offering of the Securities) be responsible for any amount in excess of the
fees payable by the Company to the Purchaser pursuant to Section 3 hereof.
If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Purchaser severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one
hand and of the Purchaser on the other in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed
to be equal to the sum of (i) the aggregate Redemption Price for the
Debentures converted by the Purchaser pursuant to Section 2(a) hereof and
(ii) the amount paid by the Purchaser to the Company pursuant to Section
2(b) hereof (less the total fees payable by the Company to the Purchaser
pursuant to Section 3 hereof), and benefits received by the Purchasers
shall be deemed to be equal to the total fees payable by the Company to the
Purchasers pursuant to Section 3 hereof. Relative fault shall be determined
by reference to, among other things, whether any untrue or any alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information provided by the Company on the
one hand or the Purchaser on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Purchaser
agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above.
Promptly after receipt by a party entitled to contribution under this
Section 8 of notice of the commencement of any action, such party will, if
a claim for contribution in respect thereof is to be made against another
party or parties under this paragraph (d), notify such party or parties in
writing of the commencement thereof; but the failure so to notify such
party or parties (i) will not relieve such party or parties from liability
under this paragraph (d) unless and to the extent it or they did not
otherwise learn of such action and such failure results in the forfeiture
by such party or parties of substantial rights and defenses and (ii) will
not, in any event, relieve such party or parties from any obligations to
any party entitled to contribution other than the contribution obligation
provided in this paragraph (d). Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person who controls the Purchaser within
the meaning of either the Act or the Exchange Act and each director,
officer, employee and agent
17
<PAGE>
of the Purchaser shall have the same rights to contribution as the
Purchaser, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall
have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each
case to the applicable terms and conditions of this paragraph (d).
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Purchaser, by notice given to the Company at any time
prior to the Closing Date, if at any time prior to such time (i) trading in the
Company's Common Stock shall have been suspended by the Commission or the
American Stock Exchange, trading in the Debentures shall have been suspended by
the Commission or trading in securities generally on the American Stock Exchange
shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis the effect of
which on financial markets is such as to make it, in the sole judgment of the
Purchaser, impracticable or inadvisable to proceed with the offering or delivery
of the Securities as contemplated by the Prospectus (exclusive of any supplement
thereto).
10. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Purchaser set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of the Purchaser or the Company or any of the officers,
directors or controlling persons referred to in Section 8 hereof, and will
survive the conversion of any Debentures and the delivery of and payment for any
Securities. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Purchaser, will be mailed, delivered or
telefaxed to the First Union Securities General Counsel, fax no.:_______ and
confirmed to the General Counsel, First Union Securities, at 53 Forest Avenue,
Old Greenwich, CT 06870, Attention: General Counsel; or, if sent to the Company,
will be mailed, delivered or telefaxed to General Counsel, DRS Technologies,
Inc., 5 Sylvan Way, Parsippany, NJ 07054, telefax number: _______ , Attention:
General Counsel.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
14. Counterparts. This Agreement may be signed in one or more counterparts,
each of which shall constitute an original and all of which together shall
constitute one and the same agreement.
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15. Headings. The section headings used herein are for convenience only and
shall not affect the construction hereof.
16. Definitions. The terms which follow, when used in this Agreement, shall
have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement and any post-effective amendment or amendments thereto became or
become effective and each date after the date hereof on which a document
incorporated by reference in the Regulation Statement is filed.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(a) above.
"Prospectus" shall mean the prospectus relating to the Securities that
is first filed pursuant to Rule 424(b) after the Execution Time or, if no
filing pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities included in the Registration
Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto becomes effective prior to the
Closing Date, shall also mean such registration statement as so amended.
"Rule 415" and "Rule 424" refer to such rules under the Act.
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<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the Purchaser.
Very truly yours,
DRS Technologies, Inc.
By:_________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
First Union Securities, Inc.
By:
____________________________________
Name:
Title:
20
<PAGE>
EXHIBIT A
DRS Technologies, Inc.
Standby Underwriting of Common Stock
December __, 2000
First Union Securities, Inc.
53 Forest Avenue
Old Greenwich, CT 06870
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Standby Agreement (the "Standby Agreement") between DRS Technologies, Inc., a
Delaware corporation (the "Company"), and you as purchaser (the "Purchaser"),
relating to a call for redemption by the Company of all of its outstanding 9%
Senior Subordinated Convertible Debentures due October 1, 2003. Such Debentures
are convertible into shares of the Common Stock, $.01 par value, of the Company
("Common Stock"), at any time prior to 5:30 p.m., Eastern Standard Time, on the
day preceding the Redemption Date (as defined in the Standby Agreement).
In order to induce you to enter into the Standby Agreement, the undersigned
hereby agrees that, without the prior written consent of First Union Securities,
Inc., the undersigned will not, prior to the Redemption Date (and, if the
aggregate number of the Securities exceeds 500,000 shares, for an additional
period of 30 days following the Redemption Date), offer, sell or contract to
sell, or otherwise dispose of (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement or
otherwise) by the Company) directly or indirectly, by means of a public offering
requiring registration with the Securities and Exchange Commission or announce
the public offering of, any other shares of Common Stock (other than the
Securities) or any securities convertible into, or exchangeable for, shares of
Common Stock (other than any such sale or disposition of such securities
pursuant to the registration of such securities on Form S-4 or Form S-8 under
the Act or any successor forms or any such sale or disposition of such
securities in connection with any merger or consolidation involving the Company
or a subsidiary of the Company or the acquisition by the Company or a subsidiary
of
21
<PAGE>
the Company of the capital equity or substantially all of the assets of any
other person or entity). The provisions of this paragraph shall not prevent the
conversion or exchange pursuant to their terms of any securities of the Company
outstanding as of the date and time that the Standby Agreement is executed into
or for other shares of Common Stock or any securities convertible, or
exchangeable for, shares of Common Stock.
If for any reason the Standby Agreement shall be terminated prior to the
Closing Date (as defined in the Standby Agreement), the agreement set forth
above shall likewise be terminated.
Yours very truly,
-------------------------
[Name]
22
